Job Candidates Deserve Fair Treatment of Their Applications - LawNow Magazine

Job Candidates Deserve Fair Treatment of Their Applications

job-search-276893__180I have applied for many jobs in both the private and public sectors in Canada. Some were full-time, most were part-time. Several employers follow a long, drawn-out application process involving several phases: asking for numerous personal and work experience referees;written examinations; telephone calls;  and occasionally requiring flights out of province or drives to other cities for interviews (sometimes at my own expense). Often about eight months later, all contact with the prospective employer stopped. No one returned my calls and I am still waiting nine years later to hear whether I got the job.

For several other part-time, unpaid positions with public agencies, I spent two to three days away from my regular job travelling to Ottawa for interviews. I had to produce four original reference letters from supervisors and colleagues who were asked to comment on a list of things. I brushed up my French, read all I could find on my agency and put my best foot forward. I did not hear from the Government of Canada for almost one more year, which was several months after I read on the website the name of the successful candidate. She was, by the way, the person who was serving in the role on an interim basis. This was the same outcome several other times I applied for jobs. I did not have the impression my application was considered seriously. Rather, I was mere fodder fed into a formal process that always had a pre-ordained conclusion.

My theory is that job competitions ought to be treated in law in the same way as commercial project tendering processes. Employment agencies can be guilty of the same disregard of applicants. Recently, I was in a law recruitment office applying for a part-time volunteer position (lawyers even compete to volunteer). While I was waiting in the reception area, I noticed several paid job postings that tweaked my interest. When the search consultant (who also headed the firm) completed her interview with me about the volunteer position, I asked about a few of the other listed positions. She seemed dismissive. When I pressed her, she admitted without a whiff of impropriety, that the positions had been filled, in some cases years earlier. Her objective was to attract as many interested candidates to her firm, even with the bait of attractive job openings that were no longer active. There is no economic or legal incentive to communicate with applicants and to remove stale postings, even though today, valuable ongoing communication with applicants and maintaining up to date job listings has never been easier to achieve.

On another site, I discovered that more than half of the advertised jobs were not open. The employer or agency left the listings up to continue to attract job seekers to their sites in the same way a realtor would leave the ‘For Sale’ sign standing months after the new buyers have moved in.
I have applied for many jobs listed online with employers and search firms. One job apparently required that applicants live in another city, although this was not stated in the job description. Other jobs had hidden requirements and other employers changed the job requirements after I applied.

The job applicant invests significantly in the search process and always is in a weaker position relative to the prospective employer who controls the process from start to end.Once, I made it to the final round for a part- time appointment to another public agency. I had already gone through months of formal process. I had to sit and pass a challenging written exam at a specific time and place set by the employer. The interview was held out of town at my expense and I juggled to get the time off. The interview was a few silly role play exercises which struck me as odd for a quasi-judicial decision-maker position. Several months later I received the standard rejection letter. This time I followed up and was told I did not get the position because I did not say one specific magic word (“administrative”) during the interview. It was irrelevant that no one prompted me for that word, and that I had used that word all over my cover letter and written exam.
As the economy becomes more challenging for job seekers, uncaring or unaware employers can add to the job searchers’ expectations and wastage of time and resources. What can job applicants do about unresponsive and unfair job recruiting organizations which engage applicants in significant time and efforts to apply for their jobs?

The Problem

Many job hunters are disappointed not only to miss out getting hired for jobs they earnestly seek, but also for the often shoddy treatment at the hands of recruiting employers that seems to have become acceptable. Thirty years ago, most people applied for jobs in person or by mail. Their applications were acknowledged and they were told if they did not get the job. Ironically today, when communications can be more easily facilitated, job seekers seem to be generally less informed about the progress of their applications.

Applying for a job, even online, can take a significant expenditure of time and effort on the part of the applicant. You may have to obtain the permission (or original letters) of several references and customize and focus your resume and cover letter to the specific position. You run the risk that your current employer will learn that you are looking for another employer. There may be aptitude, qualification or judgment exams or other pre-qualification testing. If you make the first cut, you may have to take time off for interviews and sometimes travel to them at your own expense. You have to psychologically prepare yourself for the candidate process and the possibility that you get the job.

What can job applicants do about unresponsive and unfair job recruiting organizations which engage applicants in significant time and efforts to apply for their jobs?The job applicant invests significantly in the search process and always is in a weaker position relative to the prospective employer, who controls the process from start to end. Employers may already have an individual in mind for the job before it is posted. They may want to test the waters of the market to see how many people would be willing to work for them, what their qualifications and experience levels look like and the compensation packages they would accept. Employers can use the hiring process to probe prospective employees for business ideas and competitive intelligence, or develop rosters of candidates for other (and future) opportunities. An employer’s recruitment process can be a sham and most of the time prospective employees would never know.

The law has long recognized that employees have vulnerabilities and corresponding rights during employment and at termination. The law has been less attentive about protecting job applicants during the recruitment process. Most employees who fail to get the job never know the reasons why or what happened in the process. They cannot prove any legal wrongdoing and are not aware of any legal remedy. Most likely, while disappointed, they just want to move on with their lives.

Given my own numerous opportunities to observe how even reputable employers may callously disregard the interests of prospective employees, I believe employers do have a legal duty of good faith and fairness to all job applicants. My theory of a remedy arises from the commercial world of tendering, to which I will now turn.

Theory of a Legal Solution

When a company puts a project, such as the construction of a building, out for tenders and calls for bids to be sent in, a system of fair process for all participants in the tender is required. Individual, private, sealed bids in response to public tender terms are a mainstay of a competitive and efficient commercial marketplace for pricing and allocation of projects. Bidding companies will spend considerable time and money – in some cases a million dollars or more – to develop their bids and adjust their resources and capacities in contemplation of possible success.

In 1981, the Supreme Court of Canada described the law of tendering in contracts in the Ron Engineering decision [http://canlii.ca/t/1lpk8]. Submitting a bid in response to a call for tenders creates a contract with its own rights and obligations apart from the ultimate project contract. This first legal relationship of fair process is called Contract A, which arises when someone submits a valid bid in response to a tender. It is based upon good faith, equal treatment of all bidders, and legal enforceability of actions by both sides. Owners calling for tenders owe all bidders a duty of fairness. Contract A emerges as soon as one makes a proper bid. Owners cannot favour or disfavour any bidder. Contract B is the actual project contract awarded to the winning bidder.

Contract A is breached if the tendering organization calling for bids changes the rules of the competition in a way that unfairly benefits a bidder, enters into closed negotiations with a bidder, does not make a contract with any bidder, accepts a bidder who is not the most qualified, etc. A breach and liability on Contract A can be avoided if the tendering organization makes it clear at the time the tender is published that there are special exceptions to fairness and the rules. This is called a “privilege clause” but it must be upfront in the tender documents so that everyone contemplating putting in a bid knows the process may not be fair or follow the rules. Even then, the courts have said privilege clauses cannot be so broad as to make the whole bidding process meaningless.

Conclusion

One would think employers would want to treat all job applicants like customers – an opportunity to make a positive impression to promote the company and win them over. However, that is not the case and many employers from all sizes and sectors take job applicants for granted and that will need to be tested. It is an extension of the equitable business principles of good faith and fair dealing toward vulnerable individuals. It is a simple principle of commercial morality. The law protects the self-esteem interests of human beings in jobs – this is a small expansion of that thinking.

No one returned my calls and I am still waiting nine years later to hear whether I got the job.My theory is that job competitions ought to be treated in law in the same way as commercial project tendering processes. A complete job application today calls for reflection, organizing time, and effort, much like a bid on a commercial project. Bidders and job applicants invest in the application process and are vulnerable in relation to how their bid is treated by the organization conducting the tender or job recruitment. The Contract A common sense duty of fairness, equality and good faith can be applied to job applicants in the same way it is applied to bidders on construction jobs in the commercial world along the lines of Ron Engineering. If an employer wants to operate by a different playbook, it can indicate its intention to do so by invoking a privilege clause. Then fewer applicants will participate and invest in that process. The result will be self-correcting, as it is in the tendering world. Use of privilege clauses will be reduced in order to attract the best bidders and bids.

Most people will always assess the stakes of wasted efforts on ineffective job recruitments and insensitive employers as too small. They will not seek any legal recourse. On the other hand, if this model is accepted and is enforced by monetary damages, one might expect employers to be more transparent and caring in recruitment campaigns in the future, aware that job recruitment and applications encompass human processes with profoundly human impacts.

Authors:

Peter Bowal
Peter Bowal
Peter Bowal is a Professor of Law at the Haskayne School of Business, University of Calgary in Calgary, Alberta.
 


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